Fla. justices hears breath testing machine case

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TALLAHASSEE, Fla. (AP) — State Supreme Court justices were in a quandary during oral argument Tuesday on a request from three defendants for access to software that runs the only breath testing machines certified for use in Florida.

The defendants, all charged with drunken driving, believe the software can help them prove the machines are inaccurate. A lawyer for the devices' Kentucky-based manufacturer, though, argued Florida cannot force an out-of-state company to provide that data.

The appeal originated in Seminole County, but the high court's decision could affect many similar cases across Florida.

Justice R. Fred Lewis told a lawyer for the defendants, William Ponall, that he was sympathetic. Lewis and other justices, though, questioned how Florida courts could require CMI Inc. to turn over the source codes for its Intoxilyzer 8000 even though the company is not a party to the defendants' cases and the software isn't kept in Florida.

"Courts can't willy-nilly just haul off and do things across state lines even though it seems to make common sense," Lewis said.

Ponall replied that judges wouldn't have to reach cross state lines because CMI does business in Florida and has a registered agent in the state.

Robert Harrison, who sided with Ponall on behalf of the Florida Association of Criminal Defense lawyers, acknowledged a judge couldn't send a Florida sheriff to Kentucky to get the software.

But courts could impose stiff daily fines on CMI's registered agent until the agent produces the material, Harrison said.

The Daytona Beach-based 5th District Court of Appeal quashed a trial judge's order requiring CMI's registered agent to turn over the software.

The 5th District's decision, though, conflicts with two other Florida appellate rulings on the same legal issue. One of those cases also involved CMI. Prosecutors responded by dropping drunken driving charges so the company wouldn't have to disclose its source codes to the defense.

CMI lawyer Edward Guedes argued that significant differences set those cases apart from the Seminole County cases. One of the other rulings involved General Motors Corp. and came in 1987 before a series of decisions in other states that interpreted a uniform law on securing out-of-state witnesses for criminal cases.

The courts in those states have said companies such as CMI, which have no offices, employees or records in a state, cannot be forced to produce witnesses or documents although the law refers only to witnesses, Guedes said. Ponall argued that he's seeking only documents, not witnesses, so the uniform law doesn't apply.

Justice Charles Canady questioned how the plain language referring only to witnesses can be ignored, but Guedes said the Florida Legislature has declared that interpretations by other states must be considered valid.

"Is it fair to let a company in some state manufacture equipment that is producing false readings, causing individuals in this state to get locked up?" Lewis asked.

Guedes replied that there's an easy solution, but it's not in the courts.

The Legislature could pass a law or the Florida Department of Law Enforcement could adopt an administrative rule requiring out-of-state manufacturers to disclose such information to criminal defendants, Guedes said. He said any objection on grounds of revealing trade secrets could be avoided through a confidentiality requirement.

Ponall and Harrison argued Florida courts already have all the authority they need.

"The key is once we get them lawfully served, once they're here, you have the authority over the corporation," Harrison told the justices.

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